228 Politics and the judiciary
heard from the nominee and from representatives of groups who may en-
dorse or oppose the nomination. The Committee on the Federal Judiciary of
the American Bar Association investigates the nominee’s record and grades
him or her as ‘exceptionally well-qualified’, ‘well-qualified’, ‘qualified’, or
‘not qualified’, and gives evidence before the Judiciary Committee.
Appointment to the Supreme Court is seen as the climax of a political
or legal career – one chief justice, Taft, had previously been president of
the United States. The main routes to appointment on the Court are mem-
bership of the Senate or House of Representatives, a Cabinet post, lower
federal or state courts, and state legislative or gubernatorial office. Some
justices have had what would be described as a political career, rather than
a straightforward legal background, before appointment. Indeed, a few of
the greatest justices who have sat on the Court had had no previous judicial
experience at any level.
The political nature of the state judiciaries is more explicit. In over two-
thirds of the states the judges are elected, either directly by the electorate
or by the state legislature. Studies of the decisions of elected judges have
suggested that political considerations may affect the sentences that they
impose, for in varying circumstances either a harsh or a lenient sentence
may arouse considerable popular support. What then are the factors that
determine judicial decisions?
As far as the Supreme Court is concerned the existence of blocs or coali-
tions on the Court has long been known and understood. As with legislative
coalitions, they can be shown to form and re-form according to the issues to be
decided, with differing judges exhibiting differing degrees of consistency in
their voting behaviour. On some issues certain justices can almost always be
found on one particular side of the question, whereas the behaviour of others
may be less predictable. Thus in the 1957 term of the Court, Justice Douglas
voted for litigants claiming protection for their civil rights on forty occasions,
while Justice Clark voted against on thirty-nine occasions. However, it should
not be assumed that the evidence leads to the simple conclusion that the
judges simply use their high office to pursue narrow political ends.
Justices are subjected to cross-pressures when their views of the merits of
a particular issue come into conflict with their respect for norms of judicial
behaviour such as stare decisis. Justices are clearly influenced by their wish
to respect earlier Court decisions even though they had not originally sup-
ported them. When in 1992 the Court came to reconsider the Roe v. Wade de-
cision which had authorised abortion, there was almost certainly a majority
on the Court which was opposed to Roe, but they refrained from overturning
it because of the damage this might do to ‘the Court’s legitimacy, and to the
Nation’s commitment to the rule of law’ (Planned Parenthood of Southeastern
Pennsylvania v. Casey). Some justices, as Robert McKeever has said, ‘may feel
cross-pressured, since the judicial restraint which demands the reversal of Roe
also counsels respect for precedent.’ Thus the institutional forces that make
the Supreme Court so much more than a mere group of legal politicians